Most people associate burglary with someone violently entering a building or home without permission with the intent to commit a crime or steal something. This assumption is partly true. However, legally, violent entry is unnecessary for you to commit burglary. Under Penal Code 459, you commit burglary when you enter a home, a building, or a locked vehicle to commit a felony or theft. Burglary is associated with forced entry, the theft of valuable items, and the potential for violence or harm to the victims.

Due to these factors, burglary is often considered a grave offense and can carry significant penalties if convicted. Having an attorney defend your rights in a burglary case helps you avoid or serve a lighter sentence. The Michele Ferroni Pasadena Criminal Attorney Law Firm will assist you should you face burglary charges in Pasadena.

Burglary Under California Law

First, it is crucial to distinguish burglary from theft.

Theft and burglary are two distinct crimes. However, they do have some similarities. Burglary involves unlawfully entering a building or structure intending to commit a crime. However, theft is taking someone else's property without their consent to deprive them of it permanently. Penal Code 459 addresses burglary, while Penal Code 484 deals with theft.

Burglary is generally considered a more grave offense than theft. Burglary is usually considered a more serious offense than theft because it involves entering a property without permission, which can be seen as a violation of the owner’s privacy and could potentially endanger the safety of those inside.

You can face burglary charges in the first or second degree.

  1. First-Degree Burglary

First-degree burglary is also known as residential burglary. It occurs when a person enters a residence or other inhabited dwelling intending to commit a theft or felony. This offense is more serious than second-degree burglary. Thus, it carries harsher penalties.

“Residence” includes the following:

  • An inhabited house, which consists of a unit that is functionally connected to it, like a garage.
  • An inhabited boat.
  • An inhabited floating home.
  • An inhabited motel or hotel room.
  • A room within an inhabited house.
  • An inhabited trailer coach, or
  • An inhabited portion of any other kind of building.

Inhabited means that you use the structure or building as a dwelling unit. However, the law does not require the occupier of the structure to be present at the time of the burglary. Courts will not consider a structure inhabited if the residents move out and do not intend to return. This consideration has one exception: the residents moved out because of a natural disaster.

  1. Second-Degree Burglary

Second-degree burglary is also known as "commercial burglary." It involves unlawfully entering a non-residential building or structure intending to commit a theft or felony. Entering a locked car intending to commit a theft or felony would also result in second-degree burglary charges. A vehicle is generally considered a non-residential building or structure, even when locked.

Here are some examples of burglary:

  • A group of individuals forcibly enter a person's home while the owners are away. While inside, they steal various items, including electronics, jewelry, and money.
  • A person enters a convenience store through a broken window and steals cash from the register.
  • A group of individuals break into a warehouse and steal merchandise while aiming to sell the products on the black market.
  • A person enters a car parked in a public parking lot and steals the contents of the glove box.
  • A person breaks into a jewelry store at night and steals valuable items.
  • After hours, a person enters a commercial office building and steals valuable equipment and electronics.
  • A group of individuals enter a gated community and break into multiple homes, stealing valuables and personal belongings.

Elements of the Crime

The courts will only find you guilty if the state makes its case. Prosecutors must prove the elements below: 

  • Unlawful entry — You entered a building, structure, or dwelling without permission or authority. Prosecutors will prove the illegal entry by showing evidence of you breaking a window, picking a lock, or finding a way to gain entry.
  • Intent to commit a theft or felony — You intended to commit a theft or a felony at the time of the entry. This means you had a specific purpose or plan to steal something or commit another serious crime.

Burglary requires that you harbor the intent to steal or commit a felony at the moment of entry. If you intend to commit a theft crime or felony after entering, you are not guilty of burglary.

  • Building, structure, or dwelling — The location you entered must be a building, structure, or dwelling. This includes a house, apartment, office building, retail store, or other structures. Alternatively, a locked car is also considered for purposes of burglary.
  • Ownership or lawful possession — The building, structure, or dwelling you entered must be owned or lawfully possessed by someone else. This means you had no legal right to enter the premises.
  • One or more of the following must be true:
  1. The value of the property you intended to steal or stole exceeded $950.
  2. The structure you accessed was not a commercial building, or
  3. The structure you entered was a commercial building. However, you access it outside operating hours.

Is Burglary Different From Shoplifting?

Yes, it is. Burglary and shoplifting are two different crimes under California law. However, they both involve the taking of property without permission. The difference between the two is in how an individual takes the property.

As already discussed, you must physically enter the property or otherwise find a way to gain unauthorized entry. In contrast, shoplifting involves taking merchandise from a store or retail establishment without paying for it. Individuals achieve shoplifting by concealing items in clothing or bags, switching price tags, or otherwise attempting to avoid payment. You will face the penalties outlined under Penal Code 459.5 if a jury finds you guilty of shoplifting.

Note: You are guilty of shoplifting if you intend to steal before accessing the store.

If you did not intend to steal when entering the business, the crime is not shoplifting under the California legal system. When there is no planned intent to steal, the crime becomes petty theft, a Penal Code 484 violation. However, if you consciously decide to steal something inside the store, it is called “after-entry intent.” You can use after-entry intent as a defense in a shoplifting case. This defense is applicable if you did not intend to steal when you entered the store.

Proposition 47, passed in 2014, reclassified nonviolent offenses from felonies to misdemeanors. Shoplifting is one of the affected offenses.

Under Proposition 47, if the value of the stolen merchandise is less than $950, the offense is a misdemeanor, not a felony. This means that a person convicted of shoplifting property worth less than $950 could face lesser penalties, including shorter jail sentences and lower fines than they would have before Proposition 47 was passed.

Although shoplifting property worth less than $950 is a misdemeanor, it is nonetheless a crime. Convictions could result in significant legal consequences, which include fines, community service, probation, and even jail time.

Note: Proposition 47 does not apply to all shoplifting cases. If you have a prior conviction for a serious or violent felony or a history of certain offenses, like sex offenses, you will face felony charges for shoplifting property worth less than $950.

Is it Possible to Have Burglary Charges Reduced to Shoplifting Charges?

Yes, it is possible. However, this reduction of charges only happens under certain circumstances. However, the specific requirements and eligibility criteria for reducing a conviction depend on the details of your case.

One potential option for reducing a prior burglary conviction to a lesser offense is to file a petition for resentencing under Penal Code 1170.18. This law, also created by Proposition 47, allows specific individuals convicted of felony offenses to petition the court for resentencing as a misdemeanor. However, you must meet several eligibility criteria to qualify for resentencing under this law, including the crime you were convicted of and the length of your sentence.

Another potential option for reducing a prior burglary conviction to a lesser offense is to file a petition for a certificate of rehabilitation and pardon under Penal Code 4852.01 to 4852.21. This process allows individuals who have completed their sentence and demonstrated rehabilitation to petition the court for a certificate of rehabilitation. This certificate helps mitigate the negative consequences of a prior conviction.

Burglary and “Breaking and Entering”: Are They The Same Crime?

"Burglary" and "breaking and entering" are different crimes. However, people use the terms interchangeably in everyday language.

Breaking and entering refers to forcefully entering a property or building, for example, by breaking a window or picking a lock, without the owner's or occupant's permission. This can include entering intending to commit a crime, like theft.

Entry into burglary cases can be accomplished in various ways, including breaking and entering. However, it can also include entering through an open door or window or using a key obtained unlawfully.

So while breaking and entering can be part of a burglary, the two terms are not always synonymous. Burglary involves not only the act of breaking and entering but also the intent to commit a felony or theft once inside the structure.

Note: Though burglary does not require a break-in, it is a requirement for auto-burglary. You are only guilty of auto burglary when you break into a locked vehicle.   

Penalties if Convicted of Burglary

The consequences of a conviction under Penal Code 459 vary depending on whether the prosecutors charged you with burglary in the first or second degree.

First Degree Burglary

Residential or first-degree burglary is a felony violation. A conviction would result in the following penalties:

  • Felony or formal probation instead of prison time.
  • Two, four, or six years in state prison and/or
  • A fine not exceeding $10,000.

Further, felony burglary convictions are strikeable offenses. You will receive a strike on your record per California’s Three Strikes Law.

Second Degree Burglary

Second-degree burglary penalties are less harsh than the penalties a first-degree burglary conviction will result in. Second-degree burglary is a wobbler offense. Prosecutors can decide to pursue misdemeanor or felony penalties. Their choice depends on the facts of the case and your criminal past.

You will likely face the penalties below if charged and subsequently convicted on misdemeanor charges:

  • Misdemeanor or summary probation instead of jail time.
  • Up to one year in jail and/or
  • A fine not exceeding $1,000.

On the other hand, you will likely face the penalties below if charged and subsequently convicted of felony charges:

  • Felony or formal probation instead of prison time.
  • 16 months, 2 or 3 years in jail, and/or
  • A fine of up to $10,000.

Defenses You Can Assert in Burglary

Defense attorneys use several defense strategies to challenge burglary charges. The ideal defense is based on the facts of your case and could result in the best legal outcome. Here are the common defense strategies applicable in PC 459 violation cases. 

  1. Lack of Intent

Burglary requires the specific intent to commit a felony or theft once inside the building or structure. You could use this defense if you did not intend to commit a crime at the time of entry.

For example, suppose you entered a building to retrieve a personal item that was mistakenly left behind. You are not guilty of a PC 459 violation if you had no intent to commit a felony or theft. Alternatively, if you entered a building to look for a lost pet and did not intend to commit a crime, this could be a viable defense.

However, the lack of intent defense can be challenging to assert successfully. The prosecution could argue that your actions or statements indicate that you intended to commit a crime. In addition, if you have a history of criminal behavior or were found in possession of tools commonly used in burglaries, the lack of intent defense will not be effective.

Attorneys use several approaches to prove the lack of intent to commit a felony or theft. These include:

  • Your actions — If your actions were inconsistent with the intent to commit a crime, your actions could be evidence of a lack of intent. For example, you could have been found hiding in a closet. At the time, you had no stolen property or tools used in burglaries. Thus, you did not intend to commit a crime.
  • The circumstances — If the facts of the case support a lack of intent, this could be used as evidence in the defense. For example, being found in a building open to the public with a legitimate reason to be there.
  1. Mistake of Fact

The mistake of fact defense involves a situation where you entered a building or structure without the intent to commit a crime. However, you believed you had the right to enter the building or structure due to a mistaken belief or misunderstanding of the circumstances.

For example, you entered a building under the mistaken belief that you had been invited or had permission to enter. However, you later discovered that this was not the case. You can raise this defense.

To assert this defense, the defendant must show that the mistake of fact was reasonable under the circumstances. Further, you must prove that the mistake negates the specific intent required for burglary. You must also show that you did not act recklessly or negligently when you formed the mistaken belief.

Defense attorneys rely on various pieces of evidence to substantiate the claim of a mistake of fact, including the following:

  • Surveillance footage — Video footage is reliable evidence to show whether you had had the intent to commit a crime when you entered the building.
  • Witness testimony — Your attorney could present testimony from witnesses who confirm your mistaken belief about the right to enter the building or structure.
  • Documentary evidence — You can present documents supporting the mistaken belief defense, for example, emails or text messages showing you had a legitimate reason to be in the building or property.
  • Expert testimony — In some cases, defense attorneys rely on experts. They testify to support a defendant's claim that he/she had a mistaken belief about the right to enter the building. Testimonies from mental health, security, and forensic experts are some professionals your attorney could call upon.
  1. Factual Innocence

The factual innocence defense in a burglary case requires arguing that you did not commit the alleged burglary and that you are actually innocent of the crime. This defense often applies when no evidence links the defendant to the crime scene. Defense attorneys also use it when exculpatory evidence supports the defendant's claim of innocence.

The effectiveness of a factual innocence defense depends on several factors. These include:

  • The strength of the prosecution's case.
  • The quality and credibility of the evidence presented by the defense, and
  • The overall persuasiveness of the defense argument.

Proving factual innocence can be challenging. You bear the burden of proving that you did not commit the crime. Circumstantial evidence or witness testimony could support the prosecution's case. This makes it difficult to challenge the charges.

However, courts can dismiss your case or acquit you of the charges. You must present compelling evidence of your innocence for a judge to acquit or dismiss your case. You can introduce alibi witnesses or physical evidence contradicting the prosecution's case.

In some cases, defense attorneys could request that the judge dismiss the charges outright. They make this application if there is insufficient evidence to support a conviction. Alternatively, defense attorneys could seek an acquittal at trial. In other situations, they could appeal a conviction based on newly discovered evidence or errors during the trial.

  1. You are a Victim of Police Misconduct

Police misconduct can be used as a defense in a burglary case if the police officers involved in the investigation or arrest engaged in improper conduct that violated your rights.

For example, suppose the police conducted an illegal search or seizure, coerced a confession, or used excessive force during the arrest. In that case, your attorney could argue that any evidence obtained through these actions should be suppressed and cannot be used against you.

Another example of police misconduct in a burglary case could be if the police used a biased witness or relied on unreliable evidence to build their case against you. In this case, the defense attorney could challenge the credibility of the evidence and witnesses and argue that the case should be dismissed due to insufficient evidence.

However, police misconduct defenses can be difficult to prove and require significant evidence to support the allegations. Defense attorneys rely on the following to make their case: 

  • Police report and records — Your attorney could request police reports and documents related to the case. These include any reports of police misconduct, previous disciplinary actions against the officer, or any other relevant information that supports your claim of police misconduct.
  • Witness testimony — Witnesses who observed the police officer's behavior during the arrest or investigation could provide testimony that supports your claim of police misconduct.
  • Surveillance footage — Surveillance footage from the scene of the arrest or investigation could provide evidence of police misconduct, for example, the use of excessive force or illegal search and seizure.
  • Expert testimony —Your attorney could call upon experts in law enforcement procedures or police misconduct to testify about the officer's behavior and whether it was outside the bounds of acceptable police conduct.
  • Internal Affairs investigation records — If the police officer has a history of misconduct, records from previous internal affairs investigations could be introduced as evidence.

It is also worth noting that even if police misconduct is proven, it does not necessarily result in the dismissal of the charges. However, a reduction in charges or a plea bargain is possible.

Contact an Experienced Defense Attorney Near Me

If you or someone you know is facing burglary charges, contact an experienced criminal defense attorney immediately. A skilled attorney can help protect your rights and work to achieve the best possible outcome for your case. Do not hesitate to contact the qualified Pasadena defense team at Michele Ferroni Pasadena Criminal Attorney Law Firm. We will provide the guidance and representation you need during this challenging time. Contact us at 626-628-0564 for more information.